A Controversial YouTube Video Haunts Free Speech Again

In July of 2011, Cindy Lee Garcia, an aspiring actress, responded to a casting call for a low-budget film called “Desert Warrior.” It was described as a “historical Arabian Desert adventure film,” and Garcia was cast in a small role as a concerned mother—a five-second appearance for which she would be paid five hundred dollars. But this was no “Aladdin.” Unbeknownst to Garcia, the producer, a man calling himself Sam Bacile, secretly dubbed incendiary anti-Islamic content into the film during post-production, and, on July 1st, 2012, uploaded it to YouTube under the title “The Real Life of Muhammad.” A couple of months later, the clip was translated into Arabic as “Innocence of Muslims,” after which it provoked worldwide protests and played a controversial role in the September 11th, 2012, attack on the U.S. diplomatic mission in Benghazi, Libya. Duped by the film’s producer and threatened with a fatwa, Garcia sued Google, who refused to remove the film from YouTube. Last Wednesday, the Ninth Circuit Court of Appeals—the federal appeals court of both Hollywood and Silicon Valley—ordered Google to take the video down. But in their rush to do Garcia justice, the Ninth Circuit has upended the copyright law upon which American media and tech companies rely.

There are a handful of reasons why YouTube will typically remove videos. Most have to do with copyright issues, but the site will also pull videos that violate the service’s Community Guidelines, which prohibit, among other things, graphic nudity, violence, and hate speech. It was on this basis that YouTube first blocked “Innocence of Muslims” in certain countries, after protests broke out in the Middle East in September, 2012. The video remained online in the U.S., however, and caused Garcia to lose her job and receive death threats. So she turned her efforts to the copyright angle. To do so, she advanced an unusual argument: that the clip violated the copyright she had over her own acting performance. YouTube, unaccustomed to individual actors claiming copyright over their work, rejected her claim.

In California state court later that month, Garcia sued Google and the film’s producer, whose real name turned out to be Mark Basseley Youssef (formerly Nakoula Basseley Nakoula). Youssef, a convicted felon banned from using the Internet without the permission of his probation officer, did not defend himself, leaving Google behind in the lawsuit. When the judge refused to order Google to take down the video, Garcia voluntarily withdrew the case and brought it to federal court. There, she again argued that the video should be removed from YouTube and asked the court to force Google to remove the video until the conclusion of the case. The court demurred, and Garcia appealed to the Ninth Circuit, which ordered Google to remove “Innocence of Muslims” from YouTube last Wednesday. Judge Alex Kozinski, the chief of the Ninth Circuit and a Reagan appointee, wrote that Garcia’s acting had the “minimal creative spark” required to be its own copyright-protected “work,” and that Youssef was more of a “schmuck with a videocamera” than a “movie mogul.”

Under the panel’s rule, minor players in everything from Hollywood films to home videos can wrest control of those works from their creators, and service providers like YouTube will lack the ability to determine who has a valid copyright claim…Google, YouTube, and the public face irreparable harm because the panel’s order will gag their speech and limit access to newsworthy documents.

Indeed, the free-speech consequences of this decision, which ordered that a video clip of intense public and political import be hidden from view, could be grave. Political opponents, for instance, could use this decision to demand that politically damaging videos be deleted from the Internet’s most popular sites. Parker Higgins, an activist with the Electronic Frontier Foundation, suggested cheekily that Mitt Romney could use its logic to have the “forty-seven per cent video” taken down. Perhaps so, in the unlikely case that a court found Romney’s talk to be a “performance” possessing a “minimal creative spark.” But either way, the decision weakens the spirit of the law surrounding “fair use,” which says that copyrighted media can be reproduced without permission for the purposes of criticism, news reporting, or scholarship. As of last week, we can talk about why “Innocence of Muslims” is inflammatory, but we cannot go on YouTube and see it for ourselves.

On Thursday, Google asked eleven judges of the Ninth Circuit to hear the case again; if they refuse, Google’s only chance to reverse the decision will rest with the Supreme Court. While the decision’s defenders argue that the Court answered the copyright-law questions correctly—which would be good news for Garcia—the ruling could stifle free speech. If Wednesday’s decision stands, then “Innocence of Muslims” stays down. But then more worthwhile videos might never be uploaded at all.

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